The Rediff Special/Krishna PrasadEverything you wanted to know about POTO

What is POTO?

POTO is the Prevention of Terrorism Ordinance, 2001. It was approved by the Union Cabinet on October 16, 2001, and replaces the Prevention of Terrorism Bill, which the Atal Bihari Vajpayee government sought to pass last year but failed to bring for discussion in Parliament following sharp criticism from opposition parties and the National Human Rights Commission.

So, does POTO have the NHRC's okay?

Far from it. The NHRC, a statutory body, was neither consulted in drawing up the ordinance nor given a copy of it for a week after President K R Narayanan gave his consent on October 24. Finally, a journalist gave NHRC Chairman Justice J S Verma a copy.

Why did the government keep the NHRC in the dark?

It could have been an oversight, of course, but it is very, very unlikely. In opposing the earlier bill, the NHRC had maintained that there were enough anti-terrorism laws and what was needed was stricter implementation of the existing laws, not any more new ones. Justice Verma says the problem of terrorism "cannot be solved by enacting laws that do away with legal safeguards designed to prevent innocent people from being prosecuted and punished".

Is that what the opposition parties too feel?

More or less. The opposition feels the government is using the events of September 11 as a smokescreen to sneak in a law to replace the draconian TADA -- Terrorist and Disruptive Activities (Prevention) Act -- which expired in 1995. And it thinks the government is doing this with an eye on the assembly election in Uttar Pradesh, just as it banned the Students' Islamic Movement of India. Or else, why did the government have to rush through the ordinance just weeks before the winter session of Parliament was to begin, it asks? As Samajawadi Party leader....

Don't tell me you are going to quote Amar Singh!

Yes. As Amar Singh said in a recent interview, what is the locus standi of the BJP on counter-terrorism when it "treated Maulana Masood Azhar like the son-in-law of the nation"? He was, of course, referring to External Affairs Minister Jaswant Singh accompanying Azhar and other terrorists to Kandahar and handing them over to the Taleban at the end of the hijack of Indian Airlines Flight IC-814 in January 2000.

What is the government's response to such charges?

Obviously it dismisses the allegations as posturing. It says that after September 11, terrorism has attained global dimensions and India is only complying with the United Nations Security Council Resolution 1373 of September 28, 2001, enjoining member-states to undertake comprehensive measures to deal with terrorism. Divestment Minister Arun Shourie said on TV it was necessary to arm the police with POTO because "it is no longer possible to get information out of a terrorist over a cup of tea". Terrorism, he says, has claimed 54,000 lives in the last 15 years.

What do civil libertarians say to that?

Since terrorism in India is mostly of the cross-border kind, former Delhi high court chief justice Rajinder Sachar says the National Security Act, the Unlawful Activities (Prevention) Act, and the Armed Forces Special Powers Act are sufficient to deal with any situation thrown up by terrorists. And the national president of the People's Union of Civil Liberties, K G Kannabiran, writes that for more than 50 years, the Centre has been dealing with J&K and the Northeast as a law-and-order issue. Repressive laws have been employed to rule them, and repression over time produces mindless violence.

"Repression"?

Yes. The manner in which the government has defined "terrorism" and "terrorist acts" under POTO has kicked up a ruckus. And the sweeping powers it invests in the police to arrest, detain and interrogate those it considers terrorists, and the tight bail provisions, have heightened fears of their misuse, leading to harassment, extortion and torture of innocent people. The PUCL points out that the first 23 outfits to be notified as militant organisations under POTO all belong to the minorities who have opted for self-determination.

What are these "sweeping powers" you speak about?

Arrests can be made on mere suspicion that a person is a terrorist. Premises can be searched without a warrant. All kinds of messages and communications can be intercepted without warrant. The identity of witnesses deposing against an accused can be withheld from the accused. Confessions to the police can be used as evidence. Passport and travel documents of any citizen suspected to be a terrorist or having links with terrorists can be suspended. Charge sheets can be delayed for up to 180 days. Property acquired through terrorist activities can be confiscated. Bail can be applied for and obtained only after a year. There is no time frame for special courts to deal with cases. And the onus of proving innocence is on the accused, not on the investigating authorities.

What is the government's stand on that?

Rural Development Minister Venkaiah Naidu says, point-blank, that civil rights are for civil people and human rights are for human beings, not for terrorists. And Arun Shourie says it will be a great error to judge the terrorist outfits by normal standards and prevent special measures against them. Home Minister L K Advani says conviction of terrorists is not possible unless legal provisions are of the nature of TADA and POTO.

Did TADA result in increased conviction?

No. It is variously estimated at between 1 and 2 per cent of the total number of arrests (75,000 to 77,000). And this when even under existing laws, the conviction rate, according to Law Minister Arun Jaitley, is as high as 6.2 per cent.

What do the police feel about POTO?

Most seem to be in its favour. D R Karthikeyan, who investigated the Rajiv Gandhi assassination, says the existing laws are antiquated to deal with modern-day terrorists. Others like Bombay Police Commissioner M N Singh feel that with terrorist groups ruthlessly using modern technology and operating across international borders, the agencies facing them need strong laws and proper equipment to deal with them.

What is the punishment for a convicted terrorist under POTO?

The maximum punishment for committing a terrorist act is death, and the minimum punishment is five years' imprisonment.

Slowly, slowly... how does POTO define a terrorist act?

"An act done by using weapons and explosive substances or other methods in a manner as to cause or likely to cause death or injuries to any person or persons or loss or damage to property or disruption of essential supplies and services or by any other means necessary with intent to threaten the unity and integrity of India or to strike terror in any section of the people."

That seems okay.

Depends. Critics feel that all the acts of violence mentioned in POTO are already illegal under the Indian Penal Code; so what is the need for POTO if it is not to "criminalise dissent", they ask. Moreover, the human rights group Amnesty International feels the vague definition of a "terrorist act" might expose non-violent human rights defenders, minority communities and the media to a discriminatory enforcement of POTO. And Communist Party of India, Marxist, leader Sitaram Yechuri feels that the "by any other means necessary" clause is so open-ended that even legitimate political activities such as a bandh against the government's economic policies or a trade union meeting can be interpreted as a terrorist act.

What is this flap about journalists having to reveal sources?

Yes, POTO compels journalists to disclose all information regarding any person or persons perceived by the police as terrorists, with provision for imprisonment (from a period of one year to 10 years) for failure to do so. In other words, a journalist can be arrested for not revealing his sources, for refusing to tell the police what he/she knows about a terrorist's plans or hideouts, and/or for meeting sources and receiving information.

That amounts to gagging the press.

Arun Jaitley says the provision doesn't make it an offence to meet a terrorist or report news of a terrorist organisation, unless the purpose was to support the activities of the terrorist or terrorist organisation. But information should be provided if asked for, which he says applies to everybody else as well, not just journalists. Home Secretary Kamal Pande points out that these provisions are merely a reiteration of similar provisions in section 39 of the CrPC and section 187 of the IPC.

Were media bodies consulted on this?

No. But the Law Commission says national security comes above freedom of the press. It says it has been repeatedly upheld by the Supreme Court that the rights and privileges of the press are no greater than those of any citizen of India. And that even in the UK and US, no immunity in favour of journalists or the press is recognised.

Didn't I hear somewhere that POTO has enough safeguards to prevent its indiscriminate use and misuse?

You heard right. Home Secretary Kamal Pande says that unlike TADA, the confession of an accused will not be admissible as evidence against a co-accused under POTO. The maximum period of police custody under POTO is 30 days as against 60 days under TADA. And, under section 48(7), a magistrate needs to satisfy himself only about the innocence of the accused before granting bail, not whether he is also unlikely to commit a similar offence after being let out, as required by TADA. Also, appeals against an order of a POTO special court can be made to a high court instead of the Supreme Court as required by TADA. Even Ram Jethmalani, who opposed TADA, admits POTO is more humane.

Just those safeguards?

There's more. Under POTO, intimation of the arrest of an accused will have to be provided to a family member immediately after the arrest and this fact has to be recorded by a police officer. The time for the confirmation of the first information report has been reduced. More important, confessions made to an officer below the rank of deputy superintendent of police will not be admissible as evidence. And a legal practitioner shall be allowed to be present during interrogation, but not throughout the interrogation in line with the Supreme Court's judgment in the D K Basu case.

So, regardless of the opposition, will POTO become POTA?

That's the government's belief. But the Congress' S Jaipal Reddy says POTO is "dead on arrival" because the ruling alliance is in a minority in the Rajya Sabha. But Prime Minister Atal Bihari Vajpayee says there has to be "a certain consensus" on issues of national interest.

What happens if POTO fails to pass muster?

Home Minister L K Advani, who famously said, a la George W Bush, that those opposing POTO were appeasing terrorism in some way or the other, believes it is a "win-win situation" for the NDA. If POTO is passed, great; if not, it will have painted those opposed to it with the same brush. And...

And?

Arun Jaitley feels the opposition will have egg on its face as several non-BJP-ruled states (Karnataka, Maharashtra, West Bengal, Andhra Pradesh) have passed almost identical laws, with similar provisions to counter organised crime: "If we do not adopt POTO, the international community will laugh at our commitment to rooting out terrorism and terrorists."

Where are the BJP's allies on this?

To each his own. Mamata Banerjee, who opposed TADA, feels POTO is all right, but the Shiv Sena, which has a stormy relationship with the BJP, has dismissed it as a "political gimmick". Bal Thackeray's party bluntly says the Vajpayee government has taken the step only to strengthen its Hindu vote bank in view of the UP poll. Dr Farooq Abdullah, who is up against terrorism in J&K, has welcomed it, but Parkash Singh Badal, whose Punjab is not, does not want to take a stand. Yet.

How about the numerically important Telugu Desam Party and Dravida Munnetra Kazhagam?

Ah. There are two voices in the TDP: one for, one against. But the DMK is opposed to it. In fact, with DMK opposing POTO, All-India Anna DMK leader Jayalalithaa's support for it -- she says fear of misuse cannot be a ground for repeal -- is being seen as a possible sign that the BJP and AIADMK are cozying up once again.